ORDER Abhay M. Naik, J. Shri Divesh Jain, Counsel for the appellant. Shri P. S. Das, Counsel for the respondents. Heard on the following substantial question of law formulated by this Court on 12-5-2000 :- Whether the appellant can be said to be in adverse possession of the property and perfected his right, title and interest? This appeal is directed against the judgment and decree dated 23-9-1999 passed by the Court of District Judge, Chhatarpur in Civil Appeal No. 97A/1999 in favour of the plaintiff/respondent No. 1. Short facts of the appeal are that the plaintiff/respondent No. 1 instituted a suit against Kilkota (father of the present appellant) and his son Parma (present appellant) for declaration of title and permanent injunction, mainly, with the allegations that the land comprised in various survey numbers described in paragraph-2 of the impugned judgment was inherited by the plaintiff from his ancestors. Total land was in area 27 acre 43 decimal situated at village Dauriya, Tahsil, Naugaon, District, Chhatarpur. 1/3rd of the aforesaid land which came to be about 9 acre 14 decimal was collusively got recorded in the name of defendant/appellant which was subject-matter of the suit and eventually of the present appeal. According to the plaintiff, the entire land was earlier recorded in the name of his father and grand father. At the time of death of his father, the plaintiff was minor. His mother Sita Bai being a widow took the help of Kilkota in the work of cultivation. Kilkota taking undue advantage of the minority of the plaintiff and also of illiteracy and widowhood of the mother of the plaintiff, got his name entered in the revenue record on 1/3rd share and also of his son parma (i.e. defendant/appellant) on 1/3rd share. After passage of time, the plaintiff on coming to know of this, raised an objection about the entry in favour of Kilkota. So, Kilkota executed a registered sale deed on 29-12-1972 in favour of the plaintiff and thus, retransferred 1/3rd share to the plaintiff. Remaining 1/3rd share which was got entered in the revenue record in the name of Parma, continued so, although the plaintiff remained in possession of the said land. Afterwards, the defendant/appellant initiated proceedings, for partition in Revenue Court and claimed 1/3rd share as per the revenue entry. Remaining 1/3rd share which was got entered in the revenue record in the name of Parma, continued so, although the plaintiff remained in possession of the said land. Afterwards, the defendant/appellant initiated proceedings, for partition in Revenue Court and claimed 1/3rd share as per the revenue entry. The plaintiff raised an objection in the Court of Tahsildar that Parma was not a member of his family and the entry in his name on 1/3rd share was managed in the revenue record in an illegal and collusive manner. The Revenue Court directed the plaintiff to approach Civil Court in the matter. Accordingly, the plaintiff by instituting the suit prayed that he be declared Bhumiswami and occupant of the disputed land (which is the 1/3rd share entered in the revenue papers in the name of Parma). The plaintiff in the alternative has pleaded that in case if he is not found to be in possession, a decree for restoration of possession be granted in his favour. Defendant No. 1 and 2 submitted their joint written statement and denied the claim of the plaintiff. The sale deed alleged to have been executed by Kilkota was also disputed. It was further contended in the written statement that the defendant/appellant has been in the possession of the suit land for about last 40 years and the suit of the plaintiff is liable to be dismissed. According to the defendant/appellant, the plaintiff was well aware of the entry in favour of the defendant/appellant and the suit instituted by him is liable to be dismissed as barred by limitation. It has been further contended in the written statement that Civil Court has no jurisdiction to entertain the suit in view of the provisions of section 257 of M.P.L.R.C. Possession of the plaintiff was also denied. It was further contended that since, the defendant/appellant had been occupying the suit land within the knowledge of the plaintiff for more than 12 years, the suit is liable to be dismissed. Learned Trial Judge after recording the evidence dismissed the suit on 31-8-1995 and an appeal preferred against it has been allowed by the Court of District Judge, Chhatarpur on 23-9-1999 holding thereby that the plaintiff is Bhumiswami of the disputed land and is entitled to restoration of possession because the suit land was wrongly recorded in the name of the defendant/appellant. A decree for possession has also been granted in favour of the plaintiff/respondent against the defendant/appellant. Shri Divesh Jain, Learned Counsel for the appellant tried to make out a case in favour of the appellant by submitting that the plaintiff/respondent No. 1 has failed to establish his title. According to him, it is clearly established that the plaintiff/respondent No. 1 was out of possession for more than 12 years and the suit ought to have been dismissed as barred by time. Considered the submissions made by Learned Counsel for the appellant in the light of the substantial question of law formulated by this Court on 12-5-2000. Learned Counsel took this Court through various pieces of evidence and also through paragraphs 17 to 21 and 23 of the judgment of the trial Court. In view of the substantial question of law formulated by this Court, it is made clear that the evidence on record is liable to be considered only with respect to the aforesaid substantial question of law. Any evidence not touching the above-mentioned substantial question of law is not even liable to be considered. Learned Counsel further submits that the suit of the plaintiff is liable to be dismissed as the plaintiff has failed to establish his title in regard to the suit land. Shri Divesh Jain, Counsel for the appellant much emphasised on Ex. D-42 to contend that Parma was in possession of the suit land since Samvat 2015 (corresponding year 1958). Ex. D-42 is a certified copy of the entry of mutation. Learned Counsel submits that it contains the signature of the plaintiff and therefore, the mutation in favour of the defendant/appellant will be deemed to be in the knowledge of the plaintiff from the date of order i.e. 24-10-1971 as held by the learned trial Judge. On perusal of the evidence, it is found that the original of Ex. D-42 was not summoned in the Court and the alleged signature of the plaintiff was not confronted to him. No suggestion was even put to the plaintiff whether he had put his signature on the proceedings of mutation or on the register of mutation. In the absence of either admission or confrontation, it cannot be held that the original of Ex. D-42 contained the signature of the plaintiff. Moreover, Parma has been described as shikmi in the report of Patwari as mentioned in Ex. In the absence of either admission or confrontation, it cannot be held that the original of Ex. D-42 contained the signature of the plaintiff. Moreover, Parma has been described as shikmi in the report of Patwari as mentioned in Ex. D-42 which is not even the case of the appellant in the present appeal. In the written statement, the defendant/appellant and his father Kilkota have nowhere mentioned that the status of Parma with respect to the disputed land was of shikmi. Surprisingly, the defendant/appellant has nowhere mentioned about the source of title. Although, the Learned Counsel for the defendant/appellant has argued that it is not proved to be ancestral property of the plaintiff, but this contention is found to be incorrect in view of Ex. P-10 which is a patta of the period of bandobust samvat 2002 containing the entries in favour of the ancestors of the plaintiff. As regards, the substantial question of law quoted hereinabove, it be seen that the defendant/appellant has nowhere pleaded that the entire land was partitioned and he entered into the possession of 1/3rd of it (i.e. the disputed land) to the exclusion of the plaintiff. Learned lower Appellate Court has clearly observed in paragraph-29 onwards that the name of the defendant/appellant was recorded on 1/3rd of the entire land, which at the most could have been treated as that of co-holder and the plea of adverse possession is not available in such case unless the name of the co-holder is recorded on specific 1/3rd portion of the land. The entry of mutation contained in Ex. D-42 has not been duly proved by summoning the original record. Therefore, the alleged signature of the plaintiff stated to be contained in Ex. D-42 is held to be not proved and Ex. D-42 cannot be treated as binding on the plaintiff. It cannot be equally treated as a document within the knowledge of plaintiff/respondent from 24-10-1971. According to the plaintiff he was minor at the time of death of his father. It is pleaded in the plaint that his mother due to widowhood and illiteracy took assistance of Kilkota in cultivating the land. Thus, it was for the defendant/appellant to establish that when did the possession of Parma become adverse. Hon'ble Supreme Court of India in Thakur Kishan Singh (dead) Vs. It is pleaded in the plaint that his mother due to widowhood and illiteracy took assistance of Kilkota in cultivating the land. Thus, it was for the defendant/appellant to establish that when did the possession of Parma become adverse. Hon'ble Supreme Court of India in Thakur Kishan Singh (dead) Vs. Arvind Kumar, has held that a heavy burden lies on a person who claims the title on the basis of adverse possession whose initial possession was of permissive nature. The Apex Court in the case of Gaya Parshad Dikshit Vs. Dr. Nirmal Chander and Another, has held :- Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. The defendant/appellant has further failed to prove any overt act to show that he claimed title by virtue of adverse possession. The Apex Court in the case (supra) has further held that in case of failure on the part of the defendant to prove the title by adverse possession, the suit of the plaintiff for recovery of possession is not barred under Article 65 of the Limitation Act. The name of the defendant/appellant is recorded on 1/3rd unspecified share of the land. He has further failed to aver and prove the ouster and exclusion of the plaintiff. In the absence of such averment and proof, the defendant/appellant cannot be held to have acquired the title by virtue of adverse possession. Learned Counsel for the appellant relying upon the decision of the Hon'ble Supreme Court of India in case of Kalika Prasad and another v. Chhatrapal Singh reported as 1997 RN 81 and Full Bench decision of this Court in the case of Kashiram Vs. Nathu and Another, contended that the Bhumiswami rights can be acquired by adverse possession. This preposition is not disputed even by the Learned Counsel for the plaintiff/respondent. Since the plea of adverse possession is not found to have been established by the defendant/appellant, the impugned judgment is not liable to be interfered with. Learned Counsel for the appellant further relying upon various authorities submitted that the findings of the learned A.D.J, are vitiated on account of essentially wrong approach with respect to the evidence on record specially Ex. D-42. This aspect has already been considered hereinabove and the findings of learned A.D.J, are not found to have been vitiated on account of any kind of legal infirmity. D-42. This aspect has already been considered hereinabove and the findings of learned A.D.J, are not found to have been vitiated on account of any kind of legal infirmity. As regards objection about maintainability of suit, the same is already covered by the Full Bench decision of this Court in the case of Ramgopal v. Chetu reported as 7976 MPLJ (F.B.) 325 : 1976 JLJ 278 which has also been approved by the Hon'ble Apex Court in Rohini Prasad and Others Vs. Kasturchand and Another, . Thus, the suit of the plaintiff is obviously maintainable and the contrary submissions made by the Learned Counsel for the appellant is hereby rejected. Learned Counsel for the appellant further submitted that the suit was dismissed by the trial Court as barred by limitation and this finding has not been reversed. Learned A.D.J, has held vide paragraph-51 of the impugned judgment that the suit of the plaintiff/respondent is within limitation. Since, no substantial question of law is formulated on this point, submissions made by the Learned Counsel for the appellant on this issue are not liable to be entertained. Learned Counsel for the appellant further addressed this Court on other points which were beyond the substantial question of law formulated by this Court as quoted above. Moreover, no application was made u/s 100(5) of the CPC and even no oral prayer was made to formulate any additional substantial question of law by the Learned Counsel for the appellant. In this view of the matter this Court confines itself to the abovementioned substantial question of law and declines to entertain the other objections. In the result, the substantial question of law quoted above is decided against the defendant/appellant and the appeal is hereby dismissed, however, without order as to costs. Final Result : Dismissed